SMT. RAVI SUSHA : PRESIDENT
Complainant filed this complaint U/S 12 of Consumer Protection Act 1986 for getting compensation of Rs.20,00,000/- from the opposite parties together with cost of the proceedings.
Brief facts of the case are that the wife/mother of the complainants, late Shylaja was admitted to the OP hospital on 23//4/2016 due to suffocation and respiratory ailments. She was treated by Dr.Sandeep and Dr.Nagesh Prabhu both physicians. She underwent dialysis on 23/4/2016 and 24//2/106. On 25/4/2016, both doctors instructed that dialysis was not required, but Dr.Nagesh stated that it was necessary on 26/4/2016. On the afternoon of 25/4/16, the relatives received an urgent message that the patient needed immediate dialysis. Without allowing the relatives to meet the doctors, the patient was abruptly moved from the ICU to the dialysis room by a technician who was in an inebriated condition and did not speak Malayalam. This was in contradiction to the advice of the doctors who were in charge of the patient. The reason for the sudden decision was unknown to the patient’s relatives and no laboratory tests were conducted on the patient that day. Despite Dr.Sandeep’s instruction that dialysis was not required on 25/4/2016, the technician conducted the dialysis, citing the absence of another patient who was scheduled for dialysis at the same time. Normally, dialysis took 2.5 hrs, but the patient was returned to the ICU before completing even an hour of the treatment. There was a heated exchange between the duty nurse and the technician during which the nurse reminded the technician that the doctor had said that dialysis was not required that day. Despite a notice board, allowing a bystander to be with the patient , the technician denied the presence of anyone with the patient, leading to heated exchange with the nurse. The patient died after a third and unwanted dialysis session, which was not conducted under the supervision of a qualified doctor or hospital personnel. The husband of the deceased patient paid a bill of Rs.34,000/- for the treatment. The patient’s death was attributed to the irresponsible behavior and actions of the hospital staff. The relatives of the deceased patient sought the truth behind the patient’s death and requested the OPs to provide the treatment records, but the hospital refused to hand them over. The complainants sent a lawyer notice to the OPs requesting the complete case history within a week, instead of providing the medical records, the OP’s lawyer justified the cause of death, citing emergency and life-threatening circumstances as the reason for dialyzing the patient without a doctor present. In the reply notice OPs stated that the dialysis was administered , under the telephonic instruction of a doctor, but did not reveal the name or designation of the doctor who authorized it and also stated that the records would be made available if requested through the proper channel. After that the complainant approached the Sate Information Officer of the Co-operative Department under the RTI Act, the public information officer provided some details obtained from the hospital, but the reply was incomplete, complicated and the records were illegible. The complainant requested legible and readable records and details of medication given to the patient, observations made by the doctors and reports on the dialysis administered on 23/4,24/4 and 25/4/2016. The OPs collected fees but failed to provide the requested information, including the name of the doctor who authorized the dialysis and observations of the treatment. The bills for the ventilator were given, but there were no details regarding the admission to the ventilator or reports on the treatment given. The complainant demanded complete and legible records. The complainant received medical records from the hospital but some records appeared to be fabricated and parts of the documents were covered and photocopied. The OPs did not allow the complainant to verify the documents. The lawyer notice stated that the patient’s death was due to a cardiac problem and not due to negligence from hospital staff. However, there was no record of treatment for the cardiac problem, and the mention of the problem was an afterthought. The OPs neglected their duty and treated the patient irresponsibly, leading to her death. The acts of OPs amount to deficiency of service and unfair trade practice. Hence the complaint.
After getting notice, 3rd OP filed version stating that On 23/4/2016 the patient was brought to the casualty with a complaint of acute severe dyspnea. She received supportive care and was advised to consult a cardiologist and undergo emergency dialysis after consulting with a nephrologist. The consultant nephrologist saw the patient on the day of admission and explained the patient’s condition and the need for regular hemodialysis due to acute renal failure. The complainant voluntarily agreed to the hemodialysis and further management under ventilator support. The patient was connected to a cardiac monitor, and her vitals and cardiac status were continuously checked and monitored. She was placed on the dangerously ill list due to severe dyspnea and pedal edema. Oxygen support was given through endotracheal intubation with 100% oxygen, and NTG was started due to hypertension. The poor prognosis was explained to the bystanders. The patient underwent hemo dialysis is under close monitoring of vital signs and sterile precautions. The procedure was uneventful and the patient continued to receive supportive care, proper medication and be on ventilator support under cardiac monitor, following the protocol. The general condition was not satisfactory and haematuria was present. The management continued with NTG, catheterization and oxygen support with ET care and the condition of the patient was discussed with the bystanders. The near relatives of the patient were allowed to see her. The consultant physician periodically reviewed the patient’s condition and medical management continued in the ICU as per his direction , based on periodically reviewed blood investigations, vital signs and assessment of general condition. On 23/4 2016 to 25/4/2016, the patient underwent hemodialysis as advised by the consultant nephrologist. The dialysis was uneventful and the patient was on ventilator support with close monitoring. However, by the evening of 25/4/2016, around 8.30 p.m the patient’s condition deteriorated with desaturation and hypotension. He consultant physician immediately started cardiopulmonary resuscitation as per protocol. The sudden deterioration of the patient’s condition was informed to the bystanders, and the poor prognosis was explained. The resuscitation continued despite all efforts, but the patient passed away at 9.10 p.m on 25/4/2016. The patient was brought to the hospital in a severally ill condition, with acute severe dyspnoea. She was a known case of CAHD,LVF,CRF with diabetes the hospital treated her with timely medical measures, supportive care including cardiac monitoring, haemodialysis and treated her with diuretics and antianginals with emergency care as per accepted medical practice and protocol. The patient also had severe sepsis with multi-organ failure, requiring continuous ventilator support. Haemodialysis was initiated in consultation with the nephrologist in view of acute renal failure. The patient received all possible emergency medical attention and supportive care and treatment by a team of efficient and experienced consultants and nursing staff. The patient’s death was due to severe disease condition and multi-organ dysfunction , and there was no negligence, carelessness or deficiency in service on the part of OPs. Therefore the OPs are not liable to compensate the complainant.
On the side of complainant two witness including 2nd complainant as PW1 were examined. Exts.A1 to A11 were marked on the side of complainant. PWs 1&2 were cross examined for the OPs and marked Ext.B1 case record of OP hospital pertaining to the treatment of deceased Shylaja . On the side of OPs two witness were examine d. The RMO of 3rd OP was examined as DW1. He has been cross-examined for the complainant. Dr.Sandeep Sreedharan, Consultant Nephrologist of OP hospital has filed his chief affidavit has been examined as DW2. DW2 has not been cross-examined by complainant. After that the learned counsel for OPs has argued the matter and filed written argument note.
The learned counsel for OPs submitted that there are several allegations were raised by the complainants against the OPs, the main allegation is that the patient Smt.Shylaja was dialysed against the medical advice of the treating doctors, which resulted her death at the OP hospital. The learned counsel of OPs argued that this allegation can only be substantiated by expert evidence, but no expert witness was examined from the side of complainant. It is submitted that during cross-examination of PW1 he has deposed that the Nephrologist of the OP hospital, under whose treatment the patient was, would have been examined, but he did not make any attempt to examine the said doctor. The learned counsel of OPs submitted that the number of citations of Hon’ble Apex court regarding the above said point that the negligence of a doctor, is to be proved through evidence of an expert(Dr.S.K.Jhulj Bunwala 2019(2)SCC 282) . It is submitted that absence of expert evidence on behalf of complainant, no negligence or deficiency in service could be found against doctors.
In the instant case the burden of proof lies upon the complainant to prove their allegation by examining the treated doctors Dr.Nagesh Prabhu and Dr.Sandeep because according to complainant the said doctors opinioned that there was no need for doing dialysis on 25/4/2016 and against their opinion and without doing any laboratory test, the technician has done dialysis on the patient. PW1 deposed that ഡയാലിസിസിന്ർറെ കാര്യത്തിൽ അന്തിമ തീരുമാനം നെഫ്രോളജിസ്ട്ടിന്ർറെതാണ്. 25-4-16 നു വേണ്ട എന്ന് നെഫ്രോളജിസ്റ്റ് ഞങ്ങളോട് പറഞ്ഞിട്ടില്ല. പറഞ്ഞത് ഡോക്ടർ സന്ദീപും നാഗേഷ് പ്രഭുവും ആണ്. അവർ ജനറൽ മെഡിസിൻ പ്രാക്ടീസ് ചെയ്യുന്നവരാണ്. അന്നേ ദിവസം ഡോക്ടർ സന്ദീപും നാഗേഷ് പ്രഭുവും ഡയാലിസിസ് ചെയ്യേണ്ട എന്ന് ഞങ്ങളോട് പറയുക മാത്രമല്ല സമ്മറിയിൽ എഴുതുകയും ചെയ്തിരുന്നു. സമ്മറി എന്ന് പറഞ്ഞത് ഡോക്ടറുടെ കേസ് ഷീറ്റ് ആണ്. എന്ർറെ മുന്നിൽ വച്ചാണ് എഴുതിയത്. എനിക്ക് വായിക്കാൻ പറ്റിയിട്ടില്ല ഇന്ന് ഡയാലിസിസ് ചെയ്യേണ്ട എന്ന കാര്യം കേസ് ഷീറ്റിൽ എഴുതുന്നുണ്ട് എന്ന് ഡോക്ടർ പറഞ്ഞിരുന്നു.
The learned counsel further argued that PW2 was examined on the side of complainant is in order to correct the error committed by PW1 during examination. Opposite party has examined Dr.Sandeep Surendran the Neproogist as DW2. On analysis of DW2’s evidence it is seen that he has deposed “ as a visiting consultant in Nephrology at OP hospital , had seen Mrs.Shailaja, who was admitted under General medicine in a critically ill state and she was in the intensive care unit, and was on ventilator support. She was diagnosed to have multiorgan failure due to infection and had undergone two sessions of hemodialysis for kidney failure and fluid overload. On 25/4/2016 morning, after examining the patient in the ICU, he had suggested continuing medicines to reduce fluid overload and subject her to dialysis early in the morning next day, however , later in the day he was informed over phone from hospital that her condition had deteriorated further, the fluid overload was not responding to medical measures, and as a life saving measure, he had suggested to prepone the scheduled dialysis, after approval and concurrence of the primary treating physician and resident medical officer. It is not unusual to change the scheduled dialysis in a critically ill patient as the medical condition warrants and in many instances, patients are subjected to daily dialysis sessions and it is the standard of practice. No patient will die due to dialysis which is a life-saving procedure. The advice to prepone dialysis was given in good faith as a life saving measure as she had fluid overload that was not responding to medications. “ The cause of death of the patient was not due to preponing of dialysis.” He further submit that DW1 is the RMO of 3rd OP hospital. He was examined before this commission in line with the version submitted by the OPs. During cross-examination, he was questioned only regarding the delay in providing information and failure to issue documents. In his chief examination, he has mentioned the patient’s renal failure, need for regular hemodialysis, requirement for ventilator support, inclusion in the DIL and episodes of hematuria and hemodialysis on 23/4/16,24/4/16,and 25/4/16 as per the advice of the nephrologist, among other things. It is further submitted that DW1 has not been cross examined with regard to the treatment portion.
DW2 was not cross-examined from the side of complainant. The learned counsel submitted that hence the evidence of DW2 is unchallenged and it is to be accepted as evidence in this case.
Further submitted that the technician was drunk at the time of dialysis. This also is a baseless allegation and no cogent evidence was let in. The PW1 deposed that it was seen by the PW2. PW2’s evidence on this point is “ ടെക്നീഷ്യൻ എന്നോട് പുറത്തുപോകാൻ ആവശ്യപ്പെട്ടു. പുറത്ത് പോകാൻ പറഞ്ഞ സമയത്താണോ ടെക്നീഷ്യൻ മദ്യപിച്ചതായി മനസ്സിലായത് അല്ല ശൈലജയെ ഇന്ന് ഡയാലിസിസ് ചെയ്യേണ്ടല്ലോ എന്ന് ചോദിക്കാൻ പോയപ്പോൾആണ് അയാൾ മദ്യപിച്ചതായി സംശയം തോന്നിയത്. ടെക്നീഷ്യൻ മദ്യപിച്ചു എന്ന സംശയം കൂടെയുള്ള ബന്ധുക്കളോടൊക്കെ പറഞ്ഞു. ആശുപത്രിയിൽ അധികൃതരോട് ഇക്കാര്യം പറഞ്ഞിട്ടില്ല. ഡോക്ടർ നാഗേഷ് പ്രഭുവിനോട് ഇക്കാര്യം പറഞ്ഞിരുന്നു. അപ്പോൾ നിധിൻ അവിടെ ഉണ്ടായിരുന്നു. നിധിനോട് പറഞ്ഞിട്ടില്ല. ഡോക്ടർ നാഗേഷ് പ്രഭുവിനോട് പറഞ്ഞു എന്ന കാര്യം ആരോടും പറഞ്ഞിട്ടില്ല.
The learned counsel of OP submitted the following judgments of National commission and Supreme Court suggest that the above complaint is to be dismissed. The mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant to provide the facia probanda as well as the facta probantia. C.P.Sreekumar vs.Ramanujam (2009 ) Supreme(UK) 218, 2009 2UAD 22 SC , 2010 1 UC 303 SC. In Kusum Sharma’s (2010(3)SCC 480) case the Hon’ble Supreme court relayed on the judgment of Lord Denning that the medical practitioner not to be held liable because things went wrong from mischance and misadventure or through an error of judgment(Para 73) and held that it is our bounden duty and obligation of the Civil society to ensure that medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duty without fear and apprehension.
Further cited another decision of Hon’ble Supreme Court in Post graduate Institute case(2009(7) SCC 330) held that in the medical negligence actions, the burden is on the claimant to prove breach of duty ,injury and causation. “ It is settled law that the onus to prove medical negligence lies largely on the complainant and that this anus can be discharged by leading cogent evidence. A mere averment in a complaint by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide hard evidence to prove the case of medical negligence against the Doctors/ hospitals. Des Raj Singla vs. Dayanand Medical College & Hospital ,2022 1 CPR(NC) 45.
During cross examination of DW1, the learned counsel for the complainant asked only about the original case records of the patient which was produced by OP. Though it was produced before the commission, not a single question was asked from the complainant’s side about the treatment and about the necessity of dialysis on the patient. It is also to be seen that the treated doctor, Dr.Sandeep.S has not been cross-examined. In the chief affidavit DW2 has stated that the patient Shailaja was diagnosed to have multi organ failure due to infection and had undergone two sessions of hemodialysis for kidney failure and fluid overload. On 25/4/2016 morning, after examining the patient in the ICU, he had suggested continuing medicines to reduce fluid overload and subject her to dialysis early in the morning next day, however , later in the day he was informed over phone from hospital that her condition had deteriorated further, the fluid overload was not responding to medical measures, and as a life saving measure, he had suggested to prepone the scheduled dialysis, after approval and concurrence of the primary treating physician and resident medical officer. It is not unusual to change the scheduled dialysis in a critically ill patient as the medical condition warrants and in many instances, patients are subjected to daily dialysis sessions and it is the standard of practice. No patient will die due to dialysis which is a life-saving procedure. The advice to prepone dialysis was given in good faith as a life saving measure as she had fluid overload that was not responding to medications. The cause of death of the patient was not due to preponing of dialysis.
DW2 categorically stated that the cause of death of the patient was not due to preponing of dialysis. It is seen that this witness has not been cross examined from the side of complainant. Moreover, the complainant has not tried to examine treating physician of the OP hospital.
Without adducing any such evidence, we cannot come to a conclusion that the technician had done dialysis on the patient on 25/4/2016 without the advice of treating physician and Nephrologists. Hence complainant failed to prove their main allegation with regarding to administer dialysis.
Another allegation of the complainant is that the medical records were fabricated after the death of the patients. This point is also not proved by complainant either cross-examined DWs 1&2 or by examining expert doctor.
Hence with regard to the allegations raised by the complainant in this complaint are not proved with cogent evident. Mere allegation in the complaint itself is not sufficient. So we are of the considered view that complainants are failed to prove their case.
In the result complaint fails and hence the same is dismissed. No order as to cost.
Exts:
A1-Death summary
A2-Discharge bills
A3-Copy of lawyer notice
A4-copy of reply notice
A5-pharmacy bills
A6-clinical lab report
A7-Copy of RTA application
A8&A9-Treatment details received from Asst. Registrar to complainant
A9&A10- Reply of Ext.A7
B1- case record
PW1-Nidhin S Manu-2nd complainant
PW2-Ashokan .K.K- witness of complainant
DW1-Dr.M.K.Jabir-witness of OP
DW2-Dr.Sandeep.S-witness of OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR
